USA v. Alphonse Crumpton

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-12699
Non-Argument Calendar
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D.C. Docket No. 2:04-cr-00131-WHA-WC-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALPHONSE CRUMPTON,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Alabama
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(February 7, 2013)
Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
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Alphonse Crumpton, proceeding pro se, appeals the district court’s denial of
his 18 U.S.C. § 3582(c)(2) motion to reduce sentence. After careful review, we
affirm.
In 2005, Crumpton pleaded guilty to possession with intent to distribute five
grams or more of crack cocaine (Count 1) and marijuana (Count 2), in violation of
21 U.S.C. § 841(a)(1), and using and carrying several firearms in furtherance of a
drug-trafficking offense (Count 3), in violation of 18 U.S.C. § 924(c). Based on a
total offense level of 28 and a criminal history category I, Crumpton had a
guideline range of 78 to 97 months’ imprisonment (with a 5-year mandatory
minimum sentence for Count 1), plus a statutory mandatory minimum consecutive
sentence of 5 years for Count 3. The district court sentenced Crumpton to 78
months on Count 1, to run concurrently with a 60-month sentence on Count 2.
And the court imposed the 60-month statutory minimum consecutive sentence for
Count 3, for a total of 138 months’ imprisonment.
Crumpton appealed, and this court affirmed his conviction and sentence.1 In
2008, Crumpton filed a pro se motion to reduce his sentence under § 3582(c)(2),
based on Amendment 706 to the Sentencing Guidelines which changed
Crumpton’s guideline range for Count 1 to 63 to 78 months’ imprisonment. The
1 United States v. Crumpton, 222 F. App’x 914 (11th Cir. 2007) (unpublished).
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district court granted Crumpton’s motion and resentenced him to a total of 123
months’ imprisonment, or 63 months on Count 1 and 60 months on Count 3.
Then, in 2011, Crumpton filed a second § 3582(c)(2) motion, asking the
district court to further reduce his sentence based on Amendment 750 which
revised the crack-cocaine quantity tables to comply with the Fair Sentencing Act of
2010, Pub. L. No. 111-220, 124 Stat. 2372. This time, the district court denied
Crumpton’s motion based on his “extensive disciplinary record while in custody,”
taking “into account the policy statement set forth at U.S.S.G. § 1B1.10 and the
sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent they are
applicable.” This is Crumpton’s appeal.
A district court is permitted, but not required, to reduce a defendant’s
sentence under § 3582(c)(2). United States v. Brown, 104 F.3d 1254, 1255 (11th
Cir. 1997). We review for an abuse of discretion a district court’s decision not to
do so. United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005). When
deciding whether a reduction is appropriate, the court must first determine the
sentence it would have imposed given the amended guideline range and holding all
other original guideline findings constant. United States v. Bravo, 203 F.3d 778,
780 (11th Cir. 2000).2 Then, the court “must consider the sentencing factors listed
in § 3553(a), as well as public safety considerations, and may consider the
2 Although the record does not indicate that the district court expressly made this calculation, Crumpton does not
challenge the court’s failure to do so on appeal. Any argument that this is error is, therefore, waived. United States
v. Nealy, 232 F.3d 825, 830-31 (11th Cir. 2000).
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defendant’s post-sentencing conduct, in evaluating whether a reduction in the
defendant’s sentence is warranted and the extent of any such reduction.” United
States v. Williams, 557 F.3d 1254, 1256 (11th Cir. 2009). The district court is not
required to make specific findings to support its decision not to reduce a sentence
so long as it clearly considers the § 3553(a) factors and sets forth adequate reasons
for its decision. Brown, 104 F.3d at 1255.
We conclude that Crumpton has failed to establish that the district court
abused its discretion in denying his motion to reduce sentence. Crumpton
contends, without support, that his custodial disciplinary violations were
insufficient to justify denying a sentence reduction. We do not agree. Application
Note 1(B) to U.S.S.G. § 1B1.10 states that a district court “may consider post-
sentencing conduct of the defendant” in determining whether and to what extent a
sentence reduction is warranted. U.S.S.G. § 1B1.10, cmt. n.1(B) (2011); Williams,
557 F.3d at 1256 (permitting a district court to consider post-sentencing conduct in
determining whether a reduction is warranted). The district court expressly cited
this provision when emphasizing Crumpton’s extensive custodial disciplinary
record. Further, the district court stated that it considered the applicable factors in
§ 3553(a) in declining to reduce Crumpton’s sentence. Crumpton has not
demonstrated to the contrary, and therefore has not shown that the district court
abused its discretion in denying his motion.
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AFFIRMED.
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